On Clownish Senators and States’ Rights

On Clownish Senators and States’ Rights March 24, 2022

The confirmation hearing for Supreme Court nominee Ketanji Brown Jackson is less about determining her qualifications (she’s eminently qualified) or her judicial philosophy (she’s progressive) and more about Senators pontificating to set themselves up to run for President. Along the way they’ve said some things that are extremely troubling, though not surprising.

Senator Mike Braun (R – Indiana) said that Loving v. Virginia, the 1967 Supreme Court ruling that overturned state bans on interracial marriage, was wrongly decided and the issue should have been left for states to decide. Braun later said “there is no question the Constitution prohibits discrimination of any kind based on race” but did not disavow his comment that Loving was wrongly decided.

Senator Marsha Blackburn (R – Tennessee) described Griswold v. Connecticut as “constitutionally unsound.” This was the 1965 Supreme Court ruling that overturned laws banning birth control and established the right to privacy. In a recent Republican debate for attorney general of Michigan, all candidates said Griswold should be overturned.

Senator John Cornyn (R – Texas) criticized Obergefell v. Hodges, the 2015 ruling that legalized same sex marriage nationwide, comparing it to Dred Scott (1857 – affirmed slavery) and Plessy v. Ferguson (1896 – affirmed segregation).

All these Senators will tell you the same thing: these issues should be decided by elected legislators, not by unelected judges1. They will also tell you these issues should be left to the states, not to the federal government.

That means they’re perfectly fine with Americans having fewer rights in some states than in others.

They’re perfectly fine with the majority deciding which rights minorities should have.

And since Chief Justice Roberts decided that there’s nothing unconstitutional about gerrymandering, they can manipulate temporary power to gain permanent power, and thus we get a minority deciding which rights all of us can have and which rights we can’t.

And since the courts have largely refused to prohibit voter suppression laws, they can make it harder for people to vote, reducing the chance they’ll be thrown out of office.

Think I’m overreacting? 23,000 ballots were rejected in the Texas primary earlier this month – about 10 times the historical rejection rate.

And so instead of having our rights guaranteed by the Constitution – not just its literal text, but the principles embedded in the text – our rights are subject to the whims of the political process, and those who manipulate it.

Doing with force what they couldn’t do with persuasion

Conservatives recognized years ago that they are losing the culture wars. American culture has become more diverse, more accepting, and more inclusive. Conservatives have made it clear they’re unwilling to be part of that diversity. They’re unable to convince increasingly large numbers of people that their culture and their religion is superior, so they’re resorting to propping themselves up with the force of law.

And they’re beginning to succeed. In 2015 I thought Obergefell was another good step on the arc of the moral universe bending toward justice. We are in jeopardy of it becoming the high point of American justice, after which things went steadily downhill.

The Trump/McConnell courts have done nothing to stop Texas’ vigilante abortion law, and now other states are following their example. Roe v. Wade is likely to be overturned later this year – at best it will be severely weakened. We’re under a barrage of anti-LGBTQ laws, the worst of which are directed at trans kids.

Overturning Roe v. Wade is just the beginning

And make no mistake: the culture warriors don’t just object to Griswold v. Connecticut because it established a right to privacy. They want to restrict birth control too. Birth control empowers women and it makes sex less risky – both things the far right wants to do away with.

They’re going after Obergefell next, arguing as they did in 2015 that marriage is a state issue, and if states wish to refuse to recognize same sex marriages they are free to do so.

As always when discussing “states’ rights” the real question is “the right of states to do what?” And it is clear many on the right want to return this country to 1950, when straight white Christian men ran the show and everyone else knew their place.

This is my primary concern. No government at any level has any business interfering with intimate relations between consenting adults. No government has any business interfering with medical decisions that rightly belong between patients and doctors.

And any government that tries to make life harder for vulnerable kids is evil and should be thrown out of power.

If Congress and state legislatures did their jobs and protected the rights of all – instead of defending the bigotry of some – we wouldn’t be here. But they haven’t, and beginning with Brown v. Board of Education (1954) courts have stepped in to do what legislatures would not. And now the far right is getting close to achieving their goal of reversing almost 70 years of progress.

They’ll take this further than you think – if they can

If you want to see how far they’ll take things, look at the American right’s love of Vladimir Putin. Most of them have gotten quiet about him since he invaded Ukraine, but make no mistake: they love his authoritarian rule (which is why they voted for Trump) and his embrace of “traditional” values. This is what they want for the United States.

Can they be stopped? They can, if enough people vote against them. But we have to persuade people to be concerned enough about fundamental rights to outvote those who vote Republican because they blame Joe Biden for high gas prices.

Ketanji Brown Jackson will be confirmed to the Supreme Court, and that’s a good thing. But thanks to Trump and Mitch McConnell, the philosophical composition of the courts has shifted, and federal judges have lifetime appointments. Every election matters.

As the meme says, I can’t believe I still have to protest this shit. But we do. And so we must.


1 If you genuinely believe courts should not be expanding rights, then tell me what you’re doing to expand rights through legislative means. Otherwise, I will assume you’re a bigot who just wants to force everyone to live by your religious and cultural preferences.

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